This Digest replaces an earlier version dated 19 August 2009 to
include additional analysis of proposed Government amendments to be
moved to introduce special residency requirements.

Bills Digest no. 20 2009–10

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The citizenship test was launched on 17 September 2007 with
testing commencing from 1 October 2007. The primary reason for
introducing the test was to ensure that citizenship applicants had
the requisite knowledge to demonstrate the requirements of the
Citizenship Act which, broadly speaking, are to understand the
nature of the application, to have a basic knowledge of English,
and to demonstrate comprehension of the responsibilities and
privileges of citizenship. The former Minister for Immigration and
Citizenship also linked the test to successful integration into
Australian society:

The test will encourage prospective citizens to
obtain knowledge they need to support successful integration into
Australian society. The citizenship test will provide them with the
opportunity to demonstrate in an objective way that they have the
required knowledge of Australia, including the responsibilities and
privileges of citizenship, and a basic knowledge and comprehension
of English.[1]

He further stated that it was the means of ensuring that
prospective citizens understand and appreciate Australian values,
culture and history .[2]

The Act that introduced the citizenship test was the
Australian Citizenship Amendment(Citizenship Testing)
Act 2007. In introducing the (then) Bill, a brief explanation
of the test was provided by the former Minister for Immigration and
Citizenship:

The test is expected to be computer based and
consist of 20 multiple-choice questions drawn randomly from a large
pool of confidential questions. Each test is expected to include
three questions on the responsibilities and privileges of
Australian citizenship. The pass mark is expected to be 60 per cent
including answering the three mandatory questions correctly. A
person will be able to take the test as many times as required in
order to pass.[3]

The Bills
Digest on the Australian Citizenship Amendment (Citizenship
Testing) Bill 2007 provides discussion and general background on
citizenship and policy issues surrounding the citizenship test.
[4]

Between 1 October 2007 and 31 March 2009, 111 005 applicants sat
the Australian citizenship test. Of that number 107 287 (96.7 %)
applicants passed on their first or second attempt at the test. The
pass rate of various groups was:

In its 2007 National Platform, the Australian Labor Party stated
that its intention to support an inclusive citizenship process for
new migrants that encourages the acquisition of citizenship by
permanent residents and does not put up unnecessary barriers or
extensive delays to the acquisition of citizenship.[6]

On 28 April 2008, the Minister for Immigration and Citizenship,
Senator the Honourable Chris Evans, announced that an independent
committee of seven eminent Australians would undertake a review of
the citizenship test (the Review Committee). The Review Committee
was chaired by Richard Woolcott AC former diplomat and Secretary of
the Department of Foreign Affairs and Trade. Other members of the
Committee included former Olympian Rechelle Hawkes, SBS director
Paula Masselos, refugee advocate Julianna Nkrumah, Australia Day
Council CEO Warren Pearson, former Chief of Navy Vice Admiral Rtd
Chris Ritchie and legal expert Professor Kim Rubenstein.[7]

In accordance with the terms of reference, the Review Committee
examined the operation and effectiveness of the citizenship test
since its introduction on 1 October 2007. The report of the Review
Committee, Moving forward improving pathways to citizenship was
released in August 2008. According to the report, the committee
looked at ways to improve its operation and effectiveness as the
pathway for residents to become Australian citizens. It also
considered all aspects of the content and operation of the test,
the experiences of applicants in completing the test, the impact on
citizenship applications and other related issues.[8]

The Review Committee s findings and recommendations will be
discussed in further detail below.

As a result of its broad consultations, the Review Committee
generally found that:

organisations linked to migration support programs generally
opposed any form of citizenship testing

individuals whose views were sought in the community on the
other hand, tended to support some form of test

there was support from many during community consultations for
education in civic responsibilities required of Australian citizens
and the desirability that the community provide this
education.

English teachers and language/educational experts generally
held the view that the level of English was pitched at too high a
level for its intended audience.[9]

The Review Committee also found that there was much criticism of
the resource book Becoming an Australian Citizen. Many of
those consulted considered that while much of the information was
interesting, most thought that it represented a particular view of
Australian society and history that might not be shared by all
Australians. As the basis for a test, it was seen to contain much
that was irrelevant to citizenship .[10]

The Review Committee made a number of key
findings concerning the citizenship test. In their
opinion, the test was flawed, intimidating to some and
discriminatory, needing substantial reform. They also considered
that the purpose of any test should be to assess whether a person
who wants to become a citizen is conscious of the main
responsibilities underpinning the citizenship pledge of commitment.
[11]

In addition, the Review Committee made 34
recommendations of which 22 were fully supported
by the Government, four were supported in principle, two were
partially supported (elements of the recommendation were supported)
and six were not supported.[12] In brief, the six unsupported
recommendations included:

Pass mark to remain at 60%

Concept of earned citizenship be introduced

earned citizenship to be decided by a referee

That a Citizenship Convention be held in 2009

Test questions be published

Number of mandatory questions be reduced to two.

Recommendations made by the Review Committee of particular
relevance to this Bill will be discussed below under the main
provisions section of this Digest.

the operation of the citizenship testing
regime be reviewed three years after the Bill's commencement,
particularly to gauge the regime's impact on citizenship
application and conferral rates and on certain groups within
society, particularly refugee and humanitarian entrants
(recommendation 1).[14]

Persons with a physical or mental incapacity as a result of
having suffered torture or trauma outside Australia will be exempt
from sitting the citizenship test;

Streamlines the citizenship process by removing the
requirement that the citizenship test be successfully completed
prior to the lodgement of application. The Minister will also be
able to specify a time period in which the test must be
successfully completed; and

Persons under 18 years of age will be required to be permanent
residents in order to satisfy the eligibility criteria for
citizenship.

Items 1 to 7 amend provisions relating to
citizenship by conferral. Item 1 proposes to amend
existing section 19G to remove the reference to permanent
in the simplified outline to the Subdivision. Item
3 proposes to substitute paragraph
21(3)(d) which relates to a person with a
permanent physical or mental incapacity at the time they
make the application with one referring to new subsections 21(3A)
and (3B).

Item 4 inserts proposed subsections 21(3A) and
(3B). Proposed
subsection 21(3A) states that a person satisfies the
subsection if that person at the time of making an application for
citizenship has a permanent physical or mental incapacity
that means the person is not capable of understanding the nature of
the application at that time. Proposedsubsection 21(3B) relates to a person with a
physical or mental incapacity at the time the person made the
application, where the incapacity is as a result of the person
having suffered torture or trauma outside Australia. The extent of
the incapacity must be to the point that the person is:

not being capable of understanding the nature of the
application at the time they made it; OR

not being capable of demonstrating a basic knowledge of the
English language at that time; OR

not being capable of demonstrating an adequate knowledge of
Australia and of the responsibilities and privileges of Australian
citizenship at that time.

These three elements form part of the general criteria for
eligibility that people applying for citizenship demonstrate by
completing the citizenship test. The practical effect of this
proposed amendment is that a person is eligible to become an
Australian citizen if the Minister is satisfied that the person
satisfies either (3A) or (3B) and qualifies in respect of
the other elements of subsection 21(3). These elements include:

that the person is over 18 years

satisfies the residence requirement or has completed relevant
defence service

will reside in Australia or maintain a close and continuing
association with Australia

is of good character.

The proposed amendments to subsection 21(3) do not change the
current provisions relating to permanent physical and
mental incapacity.

Existing section 26 requires that a person must make a pledge of
commitment. Item 7 inserts proposed paragraph
26(1)(ba) to include persons that satisfy
proposedsubsection 21(3B) in the
list of persons who are not required to make a pledge. An exception
is made for these persons because it means they are not capable of
understanding the nature of the application, or are not able to
demonstrate an adequate knowledge of English or be aware of the
responsibilities and privileges of Australian citizenship at the
time of making the application.

The Explanatory Memorandum provides that this amendment is the
result of the recommendations of the Review Committee.[21] The Review Committee
recommended that section 21(3)(d) of the Australian Citizenship
Act 2007 be amended in the spirit of the Act to include an
inability to demonstrate a basic knowledge of English and an
adequate knowledge of Australia and of the responsibilities and
privileges of Australian citizenship due to mental incapacity,
resulting in those individuals not being required to sit a
test.[22] The
Government supported this recommendation and agreed that this
change will ensure that the test does not disadvantage vulnerable
people who most need our support .[23]

In its discussion of the topic the Review Committee considered
that the current exemption criteria did not take into account the
group of people who suffered from severe and chronic symptoms
resulting from torture and trauma. While they considered that some
symptoms may be permanent others, though severe, may not be
permanent. They may be hampered by their symptoms which can impair
their ability to retain and recall information although they may be
capable of understanding the nature of the application at the time.
Therefore they would be excluded from the current exemption
provisions. The Committee commented as follows:

For survivors of torture and trauma, the use of
a formal test which requires a high level of English proficiency, a
large amount of study and familiarity in the use of a computer,
significantly disadvantages them. There are many people who come to
Australia under the Humanitarian Program who fall into this
category.[24]

The Review Committee commented that many of these people may
understand the nature of the application but may be incapable of
demonstrating a basic knowledge of English or knowledge of
Australia because of their mental state.[25]Proposed subsection
21(3B) accommodates such people by requiring paragraphs
(a), (b) or (c) to apply. That is, a person may be capable of
understanding the nature of the application but be quite incapable
of demonstrating a basic knowledge of English or an adequate
knowledge of Australia and the responsibilities and privileges of
citizenship.

It is also important to note that this exemption will
not apply to persons who have a non-permanent physical or
mental incapacity as a result of having suffered torture or trauma
whilst in Australia. For example persons who have suffered torture
or trauma while in immigration detention in Australia.[26] In its submission to
the Senate Committee inquiring into this Bill, the Coalition for
Asylum Seekers, Refugees and Detainees (CARAD) have urged
consideration be given to persons traumatised by their Australian
detention experience.[27]

In addition, it is not clear how a person s level of incapacity
will be tested and by whom. The Australian Lawyers for Human Rights
have argued that if an applicant is required to obtain evidence of
their incapacity and how it has arisen, that there are few
organisations in Australia who have the expertise to provide
services to persons who have suffered torture and trauma.[28] CARAD have also
asserted that there is really only one organisation equipped to
assist such people and that is ASeTTS: Assisting Torture and Trauma
Survivors who specialise in providing expert services to torture
and trauma survivors in Perth. They comment that the funding is
inadequate to meet the demand, with insufficient qualified staff
and long waiting lists.[29]

Item 2 proposes to substitute
subsection 21(2A) to remove the requirement that a
person must sit the citizenship test before the
application for citizenship is made. Rather, an applicant must
satisfy the following elements:

the person has sat a test (approved in a determination under
section 23A)

the person was eligible to sit that test (worked out in
accordance with that determination)

the test was taken within the relevant test period (worked out
in accordance with that determination)

the person successfully completed the test (worked out in
accordance with that determination)

If the Minister is satisfied that these elements have been
satisfied then paragraphs 21(2)(d) (e) and (f) are taken to be
satisfied. Paragraphs (2)(d), (e) and (f) relate to the person
understanding the nature of the citizenship application, possessing
a basic knowledge of English and having an adequate knowledge of
Australia and of the responsibilities and privileges of Australian
citizenship.

Significantly, the Explanatory Memorandum notes that this
amendment will not only enable applicants to meet all the
requirements for citizenship on the same day , it will also ensure
that a person will not be eligible for citizenship if they are
unable to successfully complete the test within a reasonable
period of time (emphasis added):

By removing the requirement that an applicant
must sit and successfully complete the test before applying for
citizenship, the amendments will allow eligible applicants in many
circumstances to meet all the requirements for citizenship on the
same day, including successfully completing the test. However, to
ensure that a person will not be eligible for citizenship if they
are unable to successfully complete the test within a reasonable
period of time, the amendments allow the Minister to specify a
period of time within which a person must start the test and
complete the test.[30]

To this end, item 6 proposes to insert
subsection 23A(5A) to provide that the Minister
may make a determination under subsection (1) (approval of test) to
determine the period when a person may start the test and the
period when the person may complete the test. Significantly,
subsection 23A(7) of the Act provides that a determination under
subsection 23A(1) is not a legislative instrument and therefore not
subject to Parliamentary scrutiny.

Item 8 proposes to substitute
subsection 46(1A) to make the provision consistent
with proposed subsection 21(2A) which removes the requirement that
a person must have sat the citizenship test and successfully
completed it before making an application for citizenship. This
amendment ensures that the application fee may continue to include
a component that relates to the cost of administering the
citizenship test .[31]

The Review Committee recommended as one of their recommendations
under the heading of Accessibility, Administration and Resourcing
that:

Processes be streamlined and realigned to
combine citizenship testing with the citizenship application
(recommendation 25).

The Second reading speech comments that the Act proposes to
amend the application process because of observations made by the
Review Committee that the current process of multiple steps is
inefficient for clients and the Department. It will mean that most
clients need only come to the Department once.[32] The Review Committee commented
that DIAC had received many complaints about problems experienced
by clients coping with the large distances between a person s place
of residence and the nearest test centre. The Review Committee
noted this as a particular concern in remote areas such as northern
Western Australia and certain regional locations in New South Wales
and Queensland and the matter was also raised in a number of
written submissions.[33]

Existing section 21 of the Act relates to the application and
eligibility criteria for citizenship. One of the general
eligibility criteria is that a person must be a permanent resident
at the time they make the application and at the time of the
Minister s decision on the application.[34] However, existing subsection 21(5)
only states that a person is eligible to become an Australian
citizen if the Minister is satisfied that the person is aged under
18 at the time the person made the application . Item
5 proposes to substitute subsection 21(5)
to require a person under 18 to also be a permanent resident at
time of application and decision in order to be eligible to apply
for citizenship.[35] This amendment will make existing subsection 21(5)
consistent with existing subsections (2), (3) and (4) to ensure the
integrity of the citizenship and migration programs .[36]

The Review Committee did not make any recommendations regarding
the requirement that a person under 18 be a permanent resident to
be eligible for citizenship.

Significantly, the minister has had the ability to grant
citizenship to minors since 1948 when the provision in Division 3
Citizenship by naturalisation read as follows:

Section 15(3) Notwithstanding anything contained in the preceding
provisions of this Division, the Minister may, upon application in
the prescribed form, grant a certificate of naturalisation as an
Australian citizen to an alien who is not of full age.[37]

Similarly, the Australian Citizenship Act 1948 section
13(9) in the consolidation made just prior to the 2007 Act being
passed read as follows:

(9) Subject to subsection (11), the Minister
may, in the Minister s discretion, upon application in accordance
with the approved form, grant a certificate of Australian
citizenship to a person:

However, in the second reading speech Senator Penny Wong stated
that the provision is being exploited and is undermining both the
citizenship and migration programs. [39] To this end it is worth noting that
the Minister has a discretion in existing subsection 24(2) to
refuse to approve the person becoming an Australian citizen despite
the person being eligible under existing subsection 21(5).

It appears the amendment contained in item 5 is
intended to prevent children who are in Australia unlawfully, or
who along with their families, have exhausted all migration
options, from applying for citizenship in an attempt to prevent
their removal from Australia [40] which would require assessment of policy
considerations (including residency requirements) and the best
interests of the child.[41] However, as Professor Kim Rubenstein of the Australian
National University asserts:

Exploitation is being used by the Minister in a
negative sense here and I would suggest the section is there to be
available to children who have a real connection to Australia and
who will suffer hardship if not granted citizenship. These concepts
are entirely consistent with the principles underpinning the
current Australian Citizenship Act framework. That is, it is an
avenue to ensure that the best interests of the child are taken
into account in making profound decisions about whether they have a
sufficient connection to the Australian community and also in
promoting an inclusive and tolerant and harmonious society.
[42]

Professor Kim Rubenstein considers that the proposed amendment
of subsection 21(5) is a very significant proposed amendment and
urges the Parliament to seriously review this suggested
amendment.

The Australian Lawyers for Human Rights have similarly
emphasised that such a blanket amendment disregards the rights of
children and focuses on the legal status of their parents. They
would prefer to see the provision incorporate the best interest
principle from Article 3 of the Convention on the Rights of the
Child.[43]

Victoria Legal Aid (VLA) made the following comments in their
submission:

The proposed amendment to s.21(5) of the
Australian Citizenship Act 2007 (Cth) would limit a
discretion which is of long standing in Australian citizenship law.
This discretion allows the Minister to grant Australian citizenship
to persons under 18 years of age. The amendment would allow the
Minister to exercise this discretion only where the applicant for
citizenship was, at the time of the grant of citizenship, a
permanent resident, as opposed to the current regime giving
discretion to grant citizenship to applicant s under 18 even if
they are not permanent residents.

VLA notes that a broad discretion to grant
citizenship to minors formed part of the regime under the
Australian Citizenship Act 1948 (Cth), and was retained when the
new legislation came into effect in 2007. This broad discretion,
allowing the Minister to grant citizenship to persons under 18
years of age, recognises that children are a particularly
vulnerable group. There can be extraordinary and compelling reasons
for the grant of citizenship to children. The presence of this
discretion in Australian citizenship law recognises that the unique
vulnerabilities of children sometimes raise unusual circumstances,
where a grant of citizenship is warranted. The Minister should have
the power to deal with those unusual and compelling circumstances
appropriately.

VLA does not accept that the presence of a
broad discretion under s.21(5) threatens the integrity of the
citizenship and migration programs. [44]

Item 9 provides that amendments made by items
2, 3, 4, 5, 7 and 8 apply to applications made on or after those
items commence. However, item 2 does not apply in relation to a
person if an application is made on or after that
commencement and the Minister is satisfied that prior to that
commencement, they had already successfully completed a test.

On 31 August 2009 the Minister for Immigration and Citizenship
announced that the Government proposed to introduce changes to
Australia s residency requirements. According to the Minister,
these changes will create a smoother path to citizenship for elite
athletes and people in specialist professions and enable Australia
to benefit from the talents and skills they bring to our country
:

The revamped requirements will create a fairer
system for people who, due to circumstances beyond their control,
are currently ineligible for citizenship. These changes will lead
to more gold medals for Australia at sporting events, as well as
providing a real win for the national workforce. [45]

An article in the Australian Financial Review observed
that following the changes, Russian-born ice skater Tatiana
Borodulina would be eligible to compete for Australia at next
year's Winter Olympics in Vancouver . It also reported that Tennis
Australia s Director was delighted with the changes because it is
impossible for tennis players to become citizens while continuing
in their profession because of the amount of time they are required
to be in Australia .[46]

However, the Shadow Minister for Immigration and Citizenship,
the Hon Dr Sharman Stone MP was reported to have commented that
other migrants would be "quite rightly annoyed" at a "special class
for those to [sic] win medals just for Australia" .[47]

On 8 September the Senate Committee inquiring into the Bill
finalised its
report in which it recommended that the Bill be passed.
However, the Senate Committee did not inquire into Schedule 2 of
this Bill and therefore in effect only considered half the Bill
(Schedule 1). It did not consider the amendments to be moved on
behalf of the Government to introduce the special residency
requirement (Schedule 2) as these were only made publicly available
on 9 September 2009. It is not clear why these proposed amendments
were introduced three months after the Bill was introduced.
Moreover, these amendments are not directly related or
consequential to the amendments contained in Schedule 1 of the
Bill.

Existing paragraph 21(2)(c) of the Act provides that a person is
eligible to become an Australian citizen if (amongst other things)
the Minister is satisfied that the person satisfies the residency
requirement as set out in existing section 22 of the Act. A person
satisfies the residency requirement if they are lawfully present in
Australia for a period of four years, including a period of 12
months as a permanent resident immediately prior to making their
application.[48]
Prior to 1 July 2007, under the (repealed) Australian
Citizenship Act 1948 (the 1948 Act), a person was only
required to have been physically present in Australia as a
permanent resident for periods totalling at least two years out of
the five years immediately before applying including one year
during the two years immediately before applying.[49]

The current Act, like its predecessor contained numerous
exemptions and concessions to the residency requirement for a
person:

who has overseas absences;

who has been confined in prison or psychiatric
institution;

who is the spouse or de facto (including same-sex) partner of
an Australian citizen;

who is the surviving spouse or de facto (including same-sex)
partner of an Australian citizen;

Existing subsections 22(1A) and (1B) of the Act provide that a
person must have been present in Australia for at least
three of the four years immediately prior to application, including
at least nine months in the 12 months prior to application
.[51]

This in effect means that a person could spend a total of 12
months overseas (in the four years before lodging their
application) including three months in the 12 months prior to
lodging their application (as a permanent resident) and still
satisfy the existing residency requirement for citizenship.

Under existing
subsection 22(6) periods of lawful residence, other than permanent
residence, can be treated as periods of permanent residence if the
applicant can demonstrate that they would suffer significant
hardship or disadvantage if those periods were not treated as
periods of permanent residence .[52] The Department s Citizenship
Instructions provide guidance on what would constitute significant
hardship or disadvantage. It might include:

academic (eg research, academic scholarship) or
other (sporting etc) potential is being limited or
restricted, because the opportunities to reach that
potential is available only to an Australian citizen, to the extent
that it causes significant hardship (emphasis added).[53]

In addition, it is
interesting to note that under paragraph 13(4)(b) of the (now
repealed) 1948 Act, the Minister also had discretion to treat a
period during which the applicant (as a permanent resident) was not
in Australia as a period in which they were in Australia
if they were engaged in activities that the Minister considered
beneficial to the interests of Australia .[54] There is no
corresponding provision within the existing Act to broadly make
concessions to the residency requirement on this basis.

Schedule 2 proposes to create two distinct residence
requirements. Existing section 22 will remain the same and contain
the general residence requirements while proposed
section 22A will create special residency
requirements for persons representing Australia at international
events and proposedsection 22B
will create special residency requirements for persons
engaged in specified kinds of work which require the person to
travel regularly outside Australia.

Items 1, 2 and 3 of the Schedule of Government
Amendments propose to substitute in paragraphs 21(2)(c), 21(3)(c)
and 21(4)(d) references to residence requirement with references to
general residence requirement and special residence requirement
.

Item 4 substitutes the reference in
subsection 22(1) to residence requirement with
general residence requirement and amends the heading to section 22
to General residence requirement .

Item 5 inserts new section 22A relating to
special residence requirements for persons representing Australia
at international events. The applicant must meet all the
requirements set out in proposed section 22A.

The applicant must satisfy the following criteria:

the applicant seeks to represent Australia at an international
event specified in subsection 22C(1)[55]; and

the applicant needs to be an Australian citizen to do so;
and

there is insufficient time for the applicant to satisfy the
general residence requirement; and

the head of an organisation specified in subsection
22C(2)[56] or a
person of senior position states in writing to the Minister that
the applicant has a reasonable prospect of being selected to
represent Australia at that event; and

the applicant has been in Australia for at least 180 days
during the two year period immediately before making the
application; and

the applicant was in Australia for at least 90 days during the
12 month period immediately before making the application;
and

the applicant was ordinarily resident in Australia during the
two year period immediately before making the application;
and

the applicant was a permanent resident for the period of two
years immediately before making the application;
and

the applicant was not an unlawful non-citizen during the two
year period immediately before the applicant made the
application.

As previously mentioned, a person satisfies the current
residency requirement if they are lawfully present in Australia for
a period of four years, including a period of 12 months as a
permanent resident immediately prior to making their application.
Under this proposed amendment the time a person must actually be
physically present in Australia will be reduced and the time a
person must be a permanent resident will increase. In summary, a
person will satisfy the special residency requirement if they
are:

ordinarily resident in Australia throughout the period of two
years (as a permanent resident) immediately prior to making their
application; and

present in Australia for a total of at least 180 days (which is
approximately 6 months) during that period (two years), including
at least 90 days (which is approximately 3 months) in the year
immediately before applying; and

satisfy the other criteria of proposed subsection 22A(1).

Proposed subsection 22A(2) provides that an
applicant who has been confined in a prison or a psychiatric
institution by order of a court will not satisfy the requirement in
paragraph 22A(1)(c) of having to be present in Australia for at
least 180 days before making the application. However the Minister
may decide under proposed subsection 22A(3) that
subsection (2) does not apply to the applicant and that it would be
unreasonable for it to apply having taken the circumstances that
led to the confinement into account. Significantly, proposed
subsections (2) and (3) mirror existing provisions of the Act in
subsections 22(1C) and 22(5A) relating to the current residence
requirement.

Proposed subsection 22A(4) provides the
Minister with discretion to treat a period as one where the
applicant was a permanent resident but because of an administrative
error, the applicant was not a permanent resident during that
period for the purposes of paragraph 1(f). Similarly, this
provision mirrors existing subsection 22(5) under the general
residence requirement.

Proposed subsection 22A(5) provides that for
the purposes of paragraph 1(g) the Minister has discretion to treat
a period as one in which the applicant was not in Australia as an
unlawful non-citizen but because of an administrative error, the
applicant was an unlawful non-citizen during that period. This
provision mirrors a provision in existing subsection 22(4A) under
the general residence requirement.

Proposed section 22B inserts criteria
concerning the special residence requirement for persons engaged in
particular kinds of work that takes them regularly out of
Australia. The following criteria apply to persons in this
category:

the person is engaged in work that is specified in subsection
22C(3)[57] which
requires the person to travel regularly outside Australia;
and

the person was engaged in that work for at least two years out
of a four year period immediately before the person made an
application and that during that four year period the person
travelled regularly outside Australia as a requirement of that
work; and

the person was in Australia for 480 days during the four year
period immediately before the person made an application;
and

the person was in Australia for 120 days during the 12 month
period immediately before the person made an application;
and

the person was a permanent resident for 12 months immediately
before the person made the application; and

the person was not an unlawful non-citizen during the four year
period immediately before the person made the application.

In summary, a person will satisfy the special residency
requirement if they are:

ordinarily resident in Australia during the four years prior to
making the application;

physically in Australia for a total of at least 480 days (which
is approximately one year and four months) in the four years prior
to making the application, including at least 120 days (which is
approximately four months) in the year immediately prior to making
their application; and

a permanent resident for the duration of the year immediately
before lodging the application; and

satisfy the other criteria of proposed subsection 22B(1).

Therefore, while the person needs to be ordinarily resident (as
opposed to physically present) in Australia for a period of four
years prior to making the application, this amendment will
significantly reduce the amount of time the person is required to
be physically present in Australia. The amount of time the person
is required to be a permanent resident will remain unchanged.

It is not clear how regularly a person is required to travel
outside Australia in order to come within the ambit of
proposed subsection 22B(1)(a).

Proposed subsection 22B(2) provides that if a
person was confined in a prison or a psychiatric institution by
order of a court, the person does not satisfy the requirement in
subsection 22B(1)(c) that the person be in Australia for at least
480 days during a four year period. The Minister may however decide
under proposed subsection 22B(3) that subsection
(2) does not apply to the person having taken the person s
circumstances into account and that it would be unreasonable to
apply subsection (2).

Note that proposed subsections (2) and (3) mirror existing
provisions in subsections 22(1C) and 22(5A) under the general
residence requirement.

Existing subsection 24(5) prevents the Minister from approving
certain people becoming citizens when they are not physically
present in Australia. Proposed paragraph 24(5)(aa)
provides in effect that the Minister can approve a person becoming
an Australian citizen if they satisfy the new special residence
requirements referred to in proposed sections 22A or 22B even if
they are not physically present in Australia at the time.

The Bill implements certain of the recommendations of the
Australian Test Review Committee concerning the streamlining of
processes relating to the conduct of the citizenship test. It
implements another recommendation of the Committee concerning
persons with physical or mental incapacity as a result of suffering
torture or trauma before coming to Australia. However, the
Parliament may wish to also consider the group of persons who are
part of the Humanitarian stream but who have not suffered torture
or trauma outside Australia but who may have developed some form of
mental illness subsequent to their arrival in Australia perhaps as
a result of their time spent in detention. As discussed above, a
number of submissions to the Senate Standing on Legal and
Constitutional Affairs inquiry into the Bill have expressed strong
concerns regarding the proposed amendments requiring children to be
permanent residents.

Schedule 2

In September 2009 the
Government announced that it intended to move amendments to the
Bill. These amendments propose to insert new provisions into the
Act to expand the residency requirements to create special
residency requirements for specific people who may have difficulty
satisfying the existing residential requirements. Though there may
arguably be a need to restore greater flexibility in the Act to
specifically address the difficulties experienced by elite
sportspeople and people in occupations requiring regular travel
outside Australia it may similarly be argued that the proposed
amendments introduce an unnecessary level of specificity and
complexity to the 2007 Act. To this end, it is worth remembering
that the 1948 Act was replaced by the 2007 Act which was designed
to amongst other things improve clarity and ease of use. The
proposed insertion of special residency requirements (through
proposed sections 22A and 22B) may also be viewed critically on the
basis that these provisions have not received the same level of
scrutiny as the other provisions of the Bill. In addition, it may
be arguable that notwithstanding existing flexibilities in the Act,
the proposed ability to fast-track the citizenship of certain
people who have spent significantly less time in Australia may sit
uneasily with other potential citizens whose citizenship may be of
equal or greater benefit to Australia. .

[34]. Existing paragraph 21(2)(b) of the
Australian Citizenship Act 2007

[35]. Section 5 of the Australian Citizenship Act
2007 defines a permanentresident generally
as a person who is in Australia and holds a permanent visa. There
are other elements relating to special category visas in the
definition.

[41]. Department of Immigration and Citizenship,
Australian Citizenship Instructions (ACIs), registered as an
official departmental instruction on 01 July 2009, Chapter 5
Citizenship by Conferral, accessed using Legend database.

[42]. K Rubenstein, Director of the Centre for
International and Public Law, ANU College of Law, ANU, Submission
to the Senate Standing Committee on Legal and Constitutional
Affairs, p.2.

[48]. Schedule 3 (Application and
transitional provisions) of the Transitional Act provides that in
the absence of any other relevant provisions, the residence
requirements of the old Act (one in two years and two in five
years) apply to people who became permanent residents before the
commencement of the Act [1 July 2007], provided they apply for
citizenship before 1 July 2010 : Department of Immigration and
Citizenship (DIAC), Citizenship Instructions as at 1 July 2009,
Chapter 5: Citizenship by conferral , accessed using Legend
database.

[49]. Subparagraph 13(1)(d) and (e) of the
Australian Citizenship Act 1948.

[50]. See subsections 22(1) (11) Australian
Citizenship Act 2007. There are other exemptions for people
who have completed defence service etc.

[54]. see subparagraph 13(4)(b)(ii). The Minister
could also treat a period ending before the five years referred to
in paragraph 13(1)(e) as a period within the five years.

[55]. Proposed subsection 22C(1) provides that the
Minister may by legislative instrument specify the international
events that apply.

[56]. Proposed subsection 22C(2) provides that the
Minister by legislative instrument specify the organisations who
may give notice to the Minister of an applicant with a reasonable
prospect of representing Australia at an event.

[57]. Proposed subsection 22C(3)
provides that the Minister may specify via a legislative instrument
kinds of work for the purposes of paragraph 22B(1)(a). The Minister
s media release suggests examples of international airline pilots
and offshore oil rig workers: C Evans, op.cit.

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